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Click here for the full text of this decision FACTS:The property at the center of the dispute consisted of 172.18 acres of land acquired by the developer in two purchases. The first purchase, consisting of 93 acres for which the developer paid $930,000, was made on Aug. 16, 2000. The remaining 79.18 acres were purchased for $837,500 on July 10, 2001. Both tracts are located in Rowlett in an area zoned “SF-E” (single-family residential estate development). The area had been zoned for 1-acre minimum lots since 1967. The preamble to the original ordinance provided the purpose of the original zoning was “to provide a location for principally undeveloped land situated on the fringe of an urban area and used for agricultural purposes” and to “encourage and protect agricultural uses until urbanization is warranted and the appropriate change in the district classification is made.” Both tracts were used primarily for pasture land at the time of purchase. Although the developer was not aware of the zoning when he signed the purchase contract for the first tract, he was aware of the zoning by the time of closing. In August 2000, before the purchase of the second tract, the developer applied for a zoning change to allow the development of 240 lots on the 93 acres with a density of approximately 2.57 units per acre. The city council considered and denied the application on Oct. 17, 2000. In November 2000, the developer submitted another request to allow the development of the property with a density of 2.19 units per acre. The city council denied the application. In September 2001, in conjunction with revisions to the city’s comprehensive plan, the preamble to the SF-E zoning regulations was changed to read “[t]his District is intended to allow the opportunity for minimum size lots that will allow for the largest lot size residential development in Rowlett. This zone is designed to promote and encourage a suitable environment for family life on relatively large parcels of land.” The minimum 1-acre lot size remained unchanged. On April 1, 2003, the developer submitted another zoning application, again requesting a deviation from the 1-acre minimum lot requirement. The city council denied the application. The developer subsequently filed suit against the city seeking damages and declaratory relief based on allegations of inverse condemnation. The inverse condemnation claim was submitted to the jury on several different theories: economic viability, unreasonable interference and whether the city acted with an “acquisitory intent.” The jury answered “no” to all liability questions and rendered a take-nothing verdict in favor of the city. The developer filed a motion to disregard the jury findings and for judgment notwithstanding the verdict, which the trial court denied. The developer then filed a motion for new trial, which was overruled by operation of law. An appeal followed. HOLDING:Affirmed. Inverse condemnation, the court stated, occurs when property is taken for public use without proper condemnation proceedings and the property owner attempts to recover compensation for the taking. The prohibition against taking without just compensation is set forth in Texas Constitution Art. I, �17, which provides: “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Texas courts typically look to federal cases for guidance on the constitutionality of a taking. With regard to a regulatory taking, both the state and federal takings provisions recognize that while “”all property is held subject to the valid exercise of the police power,’ ” a regulation may, under some circumstances, constitute a taking requiring compensation. In the 1992 case Lucas v. South Carolina Coastal Council, the U.S. Supreme Court held that a property owner has suffered a taking when he has been called upon to sacrifice all economically beneficial uses in the name of the common good. The Supreme Court has since recognized, the court stated, that the Lucas holding is limited to the “extraordinary circumstance when no productive or economically beneficial use of land is permitted” and “the landowner is left with a token interest.” The Texas Supreme Court applies the Lucas test to state constitutional takings, the court stated. The developer Rowlett/2000 Ltd. argued that the property at issue was valueless, because “if it can not be developed as a residential subdivision it will remain vacant, with a value equivalent to that of park land.” The fallacy of this approach, the court stated, is that it equates the lack of availability of a property for its most economically valuable use with “valueless.” Even using the lowest possible value for the undeveloped land, a reasonable jury could conclude land valued at $2,000 per acre has more than “token” value, the court stated. OPINION:Richter, J.; Wright, Lang and Richter, JJ.

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